156
Breyer, J., dissenting
would be obvious and serious. But even if limited to cases where the employer did not know of the employee's status, the incentive may prove significant—for, as the Board has told us, the Court's rule offers employers immunity in borderline cases, thereby encouraging them to take risks, i. e., to hire with a wink and a nod those potentially unlawful aliens whose unlawful employment (given the Court's views) ultimately will lower the costs of labor law violations. See Brief for Respondent 30-32; Tr. of Oral Arg. 41, 47; cf. also General Accounting Office, Garment Industry: Efforts to Address the Prevalence and Conditions of Sweatshops 8 (GAO/ HEHS-95-29, Nov. 1994) (noting a higher incidence of labor violations in areas with large populations of undocumented aliens). The Court has recognized these considerations in stating that the labor laws must apply to illegal aliens in order to ensure that "there will be no advantage under the NLRA in preferring illegal aliens" and therefore there will be "fewer incentives for aliens themselves to enter." Sure-Tan, supra, at 893-894. The Court today accomplishes the precise opposite.
The immigration law's specific labor-law-related purposes also favor preservation, not elimination, of the Board's back-pay powers. See A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 414 (immigration law seeks to combat the problem of aliens' willingness to "work in substandard conditions and for starvation wages"); cf. also Sure-Tan, 467 U. S., at 893 ("[E]nforcement of the NLRA . . . is compatible with the policies" of the Immigration and Nationality Act). As I just mentioned and as this Court has held, the immigration law foresees application of the Nation's labor laws to protect "workers who are illegal immigrants." Id., at 891-893; H. R. Rep. No. 99-682, at 58. And a policy of applying the labor laws must encompass a policy of enforcing the labor laws effectively. Otherwise, as Justice Kennedy once put the matter, "we would leave helpless the very persons who most need protection from exploitative employer practices."
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